Citation Nr: 1335736 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-47 051A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss, and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for tinnitus, and, if so, whether service connection is warranted. REPRESENTATION The Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from February 1974 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the RO in Houston, Texas, which denied reopening of service connection for bilateral hearing loss and tinnitus. The Veteran testified before the undersigned at a May 2013 videoconference hearing. A transcript has been associated with the file. The issues of service connection for bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An unappealed March 2005 rating decision, of which the Veteran was notified in March 2005, denied service connection for tinnitus and reopened but denied service connection for bilateral hearing loss. 2. Additional evidence received since the March 2005 rating decision is neither cumulative nor redundant, and raises the possibility of substantiating service connection for bilateral hearing loss and tinnitus. CONCLUSIONS OF LAW 1. The March 2005 rating decision, denying service connection for tinnitus and reopening but denying service connection for bilateral hearing loss, became final. 38 U.S.C.A. § 7105 (West 2002& Supp. 2013); 38 C.F.R. § 20.1103 (2013). 2. New and material evidence has been received sufficient to reopen service connection for bilateral hearing loss and tinnitus. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Board has reopened service connection for bilateral hearing loss and tinnitus, as discussed below. As such, the Board finds that any error related to the duties to notify or assist on reopening is moot. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). Reopening of Service Connection Laws and Regulations Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c), (d) (3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id., at 118. Reconsideration, rather than reopening, of a prior claim is warranted where relevant, official service department records not considered during the prior claim are received. 38 C.F.R. § 3.156(c). Reopening of Service Connection for Bilateral Hearing Loss and Tinnitus The Veteran has brought previous claims for service connection for bilateral hearing loss. The Veteran's original claim for service connection for left ear hearing loss was denied in a December 1980 rating decision. The Veteran initiated an appeal. A July 1981 Statement of the Case was issued. He was notified of the Statement of the Case and provided notice of his procedural and appellate rights in July 1981. He failed to perfect his appeal by submission of a Substantive Appeal. No additional evidence was received. That rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. The Veteran brought a claim for service connection for bilateral hearing loss in 1988. Reopening of service connection for the left ear and service connection for the right ear were denied. The Veteran appealed to the Board, which affirmed the denials in September 1990. As the Veteran's Notice of Disagreement had been filed in September 1988, appeal from that Board decision was not available at that time. See Pub. L. No. 100-687, November 18, 1988, 102 Stat. 4105, Sec 402; see also Chapter 72, 38 U.S.C.A. (West 1991). The September 1990 Board decision was final at issuance. See id. The Veteran filed a claim to reopen service connection for bilateral hearing loss in 1994. The claim was denied in an August 1994 rating decision. Notice of the denial and his procedural and appellate rights was provided to the Veteran in August 1994. The Veteran did not disagree with the rating decision within one year of notice issuance. No additional evidence was received within one year of notice. The August 1994 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. The RO denied service connection for tinnitus and reopened but denied service connection on the merits for bilateral hearing loss in a March 2005 rating decision. The RO denied service connection for tinnitus on the basis that the disability was not occurred in or caused by service. The RO reopened service connection for bilateral hearing loss based on receipt of additional service department records, but found that a left ear hearing loss disability was noted at entry to service and that no aggravation was shown at discharge. The RO also found that a right ear hearing loss disability was not shown during service or within one year of separation and that the evidence did not link a current right ear hearing loss disability to any event in service. Notice of the denial and his procedural and appellate rights was provided to the Veteran in March 2005. The Veteran did not disagree with the rating decision within one year of notice issuance. No additional evidence was received within one year of notice. The March 2005 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. The Veteran's testimony before the undersigned in May 2013 regarding bilateral hearing loss and tinnitus is new and material. The Veteran previously testified at an August 1989 hearing before RO staff. The Veteran's May 2013 testimony included discussion of additional noise exposures while working in field communications, using grenades, and explosions which were not mentioned in his August 1989 testimony. These statements go to in-service incurrence injuries to which his present hearing loss may be related. The Veteran also reported that he began experiencing tinnitus as a child, but that it became persistent after he finished basic training during service. The Veteran did not provide a description of lay observable symptoms during service in connection with his prior claim. His testimony is new, addresses the ground of the prior denial, and raises a reasonable possibility of substantiating the claim. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for bilateral hearing loss and tinnitus. See 38 C.F.R. § 3.156(a). Since the March 2005 rating decision, the Veteran has provided copies of service treatment and personnel records in support of his claims. The service treatment and personnel records are largely duplicates of those previously in the claims file prior to the March 2005 rating decision. Two are not duplicates. One is a copy of a Port Call Instructions form indicating travel to Korea. The other is a March 1976 treatment record pertaining to abdominal pain. Neither of these records pertains to bilateral hearing loss or tinnitus or to any element of service connection for bilateral hearing loss and tinnitus. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Thus, these additional service department records are not relevant to service connection for bilateral hearing loss and tinnitus. Reconsideration is not warranted. See 38 C.F.R. § 3.156(c). ORDER Reopening of service connection for bilateral hearing loss is granted. Reopening of service connection for tinnitus is granted. REMAND The Board must remand service connection for bilateral hearing loss and tinnitus for additional development. First, the Veteran reported seeking treatment for hearing loss at the VA Medical Center in Martinez, California, immediately after separation in 1980 during his 1989 testimony. These records were neither requested nor obtained. The Board finds that such records would be highly probative to service connection for bilateral hearing loss claim and remands to obtain them. Second, the evidence presently in the claims file does not establish a right ear hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385 (2013). A March 2009 VA audiology report states that the Veteran had normal to mild sensorineural hearing loss in the right ear. The underlying audiogram was not obtained for the record. Other audiograms from 1993 and 1995 do not meet the current disability standard. See id. The Board remands to obtain the March 2009 audiogram scores. Third, the Board finds that a VA examination and medical opinion is appropriate for both service connection claims. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Assuming that a current right ear hearing loss disability exists, the Veteran has current disabilities of bilateral hearing loss and tinnitus. He has competently reported noise exposure during service. His service treatment records also document repeated treatment and surgery for left ear infections. He relates his bilateral hearing loss and tinnitus to service, indicating that the left ear was worsened and the right ear hearing loss and tinnitus were caused by that noise exposure. He was not provided a VA examination pursuant to his claims. The Board concludes that an examination is warranted pursuant to VA's duty to assist. See McLendon, 20 Vet. App. at 81-82. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's relevant VA treatment records from the following VA facilities: a. the VA Medical Center in Martinez, California, in 1980, concerning hearing loss, b. the March 2009 audiogram results from the VA Corpus Christi Outpatient Clinic, All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 2. After obtaining the above evidence schedule the Veteran for an appropriate VA examination to assist in determining whether a right ear hearing loss disorder which may be present, and to provide the following etiological opinions: a. Was the left ear hearing loss disorder, noted at entry, clearly and unmistakably (obvious, manifest, undebatable) not aggravated (permanently increased in severity) as a result of service? b. If the left ear hearing loss disorder did permanently increase in severity during service, was that increase clearly and unmistakably (obvious, manifest, undebatable) due to the natural progress of the disorder? c. Is any current right ear hearing loss disorder as likely as not (50 percent probability or greater) etiologically related to the in-service noise exposure reported during weapons training, work in the motor pool, work in field communications, or any other incident of service? d. Is any current tinnitus disorder as likely as not (50 percent probability or greater) etiologically related to the in-service noise exposure reported during weapons training, work in the motor pool, work in field communications, treatment and surgery for left ear infections, or any other incident of service? The entire claims folder and a copy of this REMAND must be made available to the examiner. All indicated studies should be conducted, and the results reviewed before the final opinion. 3. Then, the RO should readjudicate the claims on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2013). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs